The publicâ€™s “right to know”: A fading connection
By:Â Scott Buchanan
Every day we see headlines concerning government surveillance and oversight of private activity on the internet.
But the idea of a “free press” remains at the heart of the First Amendment.
The phrase “free press” essentially means the distribution of information without government oversight or control.
Throughout the history of our United States, certain classes of information–Notices of Elections or Public Hearings, for example–have been deemed essential enough to legally require distribution to the general public.Â While the costs of such publication has been reasonably regulated (and indeed appears to be a bargain considering it is a critical element of our democracy), the agency used to distribute these important notices has always been the free press.
Until the rise of the internet.Â Now more than ever, it is critical that some information be available to anyone who wants to know about.
Thatâ€™s why some information is required to be in public notices, like government meetings, public bids, and legal processes.
In recent years some states have experimented with the idea of requiring newspapers to publish notices not only in print but also in digital form on the internet.Â Â Some states have also legislated that some information be published on government websites. The medium itself is not dispositive for First Amendment analysis, see Reno v. ACLU, United States Supreme Court, 1997.
However, the placement of responsibility for distribution of vital public information within a government agency violates the principle of a free press precisely because it is controlled and administered by the government.Â The freedom of the press of our First Amendment necessarily includes public notices.
Some states have found a solution with publication of public and legal notices on a private website that is controlled by the State Press Associations, alongside traditional publication in the print newspaper.Â This maintains the principle of a free press in that the distribution of vital public information is not under the supervision or control of a government agency.
But aside from the First Amendment’s insistence that the distribution of vital public information be free of government control, the fact remains that most folks do not scurry straight to a government-run website when they hop on-line (at least that is my experience).
In addition to the importance of information being distributed free of government control, it is essential that certain public information be targeted to certain geographic areas.Â The idea is demonstrated by a City Council meeting notice that is put somewhere on a government website available only on the internet.
The idea of a â€œnewspaper of general circulationâ€ is increasingly recognized as requiring a print component within a geographic area affected by the actions taking place.Â Â An Opinion of the Attorney General of South Carolina dated October 21, 2015, addressed the question of whether â€œonline newspapersâ€ that exist solely on the internet with no print circulation could be considered a â€œnewspaper of general circulationâ€ as that phrase is used in statutes that impose legal notice requirements.Â The conclusion that a Court would find that online newspapers are not the same as newspapers of general circulation is consistent with legislative intent, governing law and common sense.Â The Attorney General of Ohio has reached a similar conclusion, see Op. Ohio Atty Gen, 2008 WL 1952097 (April 30, 2008).
I am proud to work for a company that believes strongly in the “public’s right to know”.Â A part of the mission of Newz Group is to protect the printing of public and legal notices in newspapers of general circulation, in opposition to the Orwellian specter of vital public information seeping from government-run websites.
Newz Group publishes online all public and legal notices from newspapers in Missouri, Colorado, Iowa, Kansas, Kentucky, Michigan, North Dakota, South Dakota, and Wyoming.Â These can be found at http://www.newzgroup.com/legal-notices.php
Disclosure:Â Scott Buchanan is General Counsel for Newz Group, a family owned media monitoring company in Columbia, MO.